SOFTWARE LICENSE AGREEMENT
By downloading this software, you are indicating that you have read and AGREE to be bound by the terms, and conditions set forth below (this “Agreement”) IN THEIR ENTIRETY without LIMITATION or qualification, AS WELL AS BY ALL APPLICABLE LAWS AND REGULATIONS, as if you had HANDWRITTEN YOUR NAME ON A CONTRACT. This Agreement is between tungsten graphics, incorporated (“licensor”) and you (If the user is not an individual, then “you” means your company, its representatives, successors and assigns) and is effective as of the date you first download the Software (the “effective date”). In consideration of the mutual promises and covenants herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledges, the parties agree as follows:
1.0 LIMITED LICENSE.
1.1 Grant. Licensor hereby grants to you, and you hereby accept from Licensor, under the terms and conditions of this Agreement, a non-exclusive, personal, non-transferable and non-sublicensable license to internally use the object code of Licensor's __________________ software (the “Software”) for the limited time period set forth below for the sole purpose of testing and evaluating the performance and functionality of the Software. You acknowledge and agree that the Software: (i) is a test version of the Software; and (ii) may contain bugs, defects and errors. You further acknowledge and agree that the Software is being provided to you without charge in exchange for your evaluation of the Software.
1.2 Limitations. You shall not: (a) permit any third parties to access or use the Software, except as specifically provided herein; (b) modify, translate, reverse engineer, decompile, or disassemble, or create derivative works from the Software; (c) copy the Software, except that you may make a single copy for back up purposes only that contains all of the original proprietary notices on and in the Software; (d) sell, rent, loan, lease, grant a security interest in, or otherwise encumber or transfer rights to the Software; or (e) remove any proprietary notices or labels on the Software.
1.3 No Support. Unless otherwise agreed to by the parties in writing, this Agreement does not entitle you to any documentation, maintenance or support with regards to the Software, and does not obligate Licensor in way to update or otherwise modify the Software. If Licensor in its sole discretion decides to update or otherwise modify the Software, such updated or modified Software shall remain subject to the terms and conditions of this Agreement.
1.4 Other Restrictions.
(i) You may copy the Software only for backup, archival, or emergency restart purposes, to replace a worn copy or for your own internal operations. You may copy any documentation only in order to satisfy your own internal usage requirements. Except as provided herein, you will not copy, or permit any third party to copy, the Software for any purpose whatsoever without the prior written consent of Licensor. You will include all copyright and all other proprietary rights notices used by Licensor in their exact form on all copies of the Software made by you or on your behalf. You shall not alter or remove any copyright or other proprietary rights notice on any copies of the Software furnished to you hereunder. You will maintain written records of the number and location of all copies in your possession of any of the Software.
(ii) You will not modify any of the Software or attempt to reverse engineer, disassemble, or decompile any of the Software, translate, localize or create any derivative works, compilations, or collective works related thereto, or apply any process, technique or procedure to ascertain or derive the source code to the Software, which is a valuable trade secret of Licensor.
(iii) If you become aware of any act or threatened act by any of your officers, directors, employees, agents or representatives which is or would be in violation of any of the terms of this Agreement, including but not limited to, the use, disclosure, or copying of the Confidential Information as defined in Section 5 or any portion thereof, you shall notify Licensor immediately and, in cooperation with Licensor, shall take all steps necessary to remedy any actual or threatened noncompliance to the reasonable satisfaction of Licensor. This provision shall not in any way limit any of the remedies otherwise available to Licensor for breach of this Agreement, or limit your liability for failing to comply with the provisions of this Agreement.
(iv) If you or any of your officers, directors, employees, agents or representatives breaches or threatens to breach any of the terms of this Agreement, Licensor shall have the right, in addition to such other remedies which may be available to it, to injunctive relief enjoining such acts or attempts, without bond, it being acknowledged that Licensor would suffer irreparable injury and that legal remedies would be inadequate.
(v) While Licensor intends to commercially release a production version of the Software, Licensor reserves the right at any time and in its sole discretion not to release the Software and, even if so released, to alter prices, features, specifications, capabilities, functions, release dates, general availability or other characteristics of the Software.
2.0 TERM.
2.1 Duration. The term of this Agreement and of the license granted herein shall begin on the Effective Date and shall end automatically upon the earlier of: (a) ten (10) days' written notice of termination by either party; (b) your violation of any of the provisions herein; (c) the execution of a license agreement to use the Software; or (d) 60 days from the Effective Date.
2.2 Expiration or Termination. Upon the expiration or termination of this Agreement, you will cease using the Software and, if requested by Licensor: (a) either return or destroy, at Licensor's discretion, all copies of Licensor's Confidential Information in your possession; (b) return to Licensor all copies of, and materials relating to, the Software in your possession; and (c) provide to Licensor a written certification of your compliance with the foregoing obligations.
3.0 RIGHTS.
3.1 Ownership. You agree that Licensor owns all rights, title and interest, including but not limited to patent, trade secret, and all other intellectual property rights, in the Software and any changes, modifications or corrections to the Software made by Licensor. This license is not a sale of the Software and you shall only receive title to the media and copy of the Software delivered hereunder. No license or other right of any kind is granted by Licensor's delivery of the Software or any subsequent version of the Software to you, except for the limited rights expressly provided in this Agreement. If you are ever held or deemed to be the owner of any copyright rights in the Software or any changes, modifications or corrections to the Software made by Licensor, then you hereby irrevocably assign to Licensor all such rights, title and interest therein and agrees to execute all documents reasonably necessary to implement and confirm the letter and intent of this Section. Additionally, you shall not remove or alter, or permit any person to remove or alter, any of the copyright, trademark or other proprietary rights notices on, stated in or affixed to any of the Software.
4.0 YOUR OBLIGATIONS.
4.1 Use by Employees. It is agreed and understood that you may allow certain employees to access the Software pursuant to the license granted herein. You agree that you shall inform such employees as to the rights and responsibilities of use of the Software as set forth herein and further agrees to ensure compliance of such employees with all of the terms and conditions herein.
4.2 Restricted Use. The Software is being provided in compliance with and subject to any and all rules and regulations of any applicable local, state, federal or international governing agency, and you agree to abide by such rules and regulations. You acknowledge and agree that Licensor may impose from time to time reasonable conditions (e.g., use of passwords, encryption) upon the use of the Software. You agree to reasonably comply, and to ensure that any party allowed to use the Software will comply, with all such conditions. You shall not use the Software in any manner not contemplated and expressly authorized herein. You may not transfer any rights granted herein to any third party regarding the use of the Software without the prior written permission of Licensor.
6.0 WARRANTIES AND LIMITATION OF LIABILITY.
6.1 Your Representations and Warranties. You represent and warrants that:
(i) if you are a corporation or other entity, you have all requisite corporate power and authority to execute and deliver this Agreement and to perform your obligations hereunder;
(ii) if you are a corporation or other entity, your execution, delivery, and performance of this Agreement and your consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on your part and
(iii) when this Agreement has been duly executed by you this Agreement will constitute the legal, valid, and binding obligation of you, enforceable against you in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights and remedies generally.
6.2 Disclaimer of Warranties. YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU ARE RECEIVING AND WILL BE USING A TEST VERSION OF THE SOFTWARE THAT IS NOT A FULLY TESTED PRODUCT OFFERING, AND WHICH MAY CONTAIN ERRORS, OMISSIONS AND PROBLEMS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, LICENSOR DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE BY ANY PERSON OR ENTITY INCLUDING SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND YOU UNDERSTAND THAT YOU ASSUME ALL RISK OF ITS USE, QUALITY AND PERFORMANCE. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR ANY SPECIAL, CONSEQUENTIAL, ACTUAL OR OTHER DAMAGES, REGARDLESS OF TYPE, OR ANY LOST PROFIT RESULTING FROM USE OF THE SOFTWARE.
6.3 Risk of Use. The entire risk of use and consequences of the use, both direct and indirect, of the Software shall be on the party using it. Licensor shall not be liable in any respect for any claims for loss or injury alleged to have resulted from any use of or reliance on the Software or any part thereof by you, by any of your customers, or by any other person. You hereby agree to indemnify, and do hereby indemnify, Licensor against any and all claims which may arise directly or indirectly out of the use or operation of the Software by you or any of your customers. You shall be responsible for verifying all output resulting from the use of the Software. You shall follow proper backup procedures for any other programming and all data to protect against loss or error resulting from use of any or all of the Software.
6.3 Limitation of Liability. LICENSOR ASSUMES NO RESPONSIBILITY WITH RESPECT TO USE OF THE SOFTWARE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOST DATA OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SOFTWARE PROVIDED HEREUNDER, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FROM INTERRUPTION OF BUSINESS, LOSS OF PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF SOFTWARE, LOSS OF DATA, COST OF RECREATING DATA, COST OF CAPITAL, COST OF ANY SUBSTITUTE SOFTWARE, OR LOSSES CAUSED BY DELAY, OR OTHERWISE FOR ANY CLAIM AGAINST YOU BY ANY OTHER PARTY. THE MAXIMUM LIABILITY OF LICENSOR FOR DAMAGES TO YOU FOR ANY AND ALL CAUSES WHATSOEVER, AND YOUR MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL AMOUNT PAID BY YOU TO LICENSOR UNDER THIS AGREEMENT.
7.0 GENERAL
7.1 Assignment. You shall not assign any of your rights or obligations hereunder, whether voluntarily, by operation of law or otherwise, without the prior written consent of Licensor. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the successors and assigns of the parties.
7.3 Relationship. The relationship between Licensor and you is that of independent contractors, and nothing in this Agreement shall constitute or be deemed to constitute any agency, joint venture or partnership relationship between the parties.
7.4 English Law. The parties agree that this Agreement is in the English language only, and that the English language shall control this Agreement in all respects. You hereby waive any and all rights under international or other law for this Agreement to be written or interpreted in any other language.
7.5 Applicable Law. This Agreement shall be governed by the laws of the State of Texas, U.S.A. (without regard to its conflicts of laws principles) and the laws and treaties of the United States. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
7.6 Exports Compliance. Each party specifically agrees that it will not knowingly: (a) export or re-export, directly or indirectly, any technical data (as defined by the U.S. Export Administration Regulations), including software received from the other under this Agreement; (b) disclose such technical data for use; or (c) export or re-export, directly or indirectly, any direct products of such technical data, including software, in or to any destination to which such export or re-export is restricted or prohibited by U.S. or non-U.S. law without obtaining prior authorization from U.S. Department of Commerce and other competent government authorities to the extent required by those laws.
7.7 Arbitration. If a dispute should arise with respect to this Agreement or the interpretation thereof, either party may deliver a written notice of such dispute to the other party. After a fifteen (15) day “cooling off” period has lapsed during which both Licensor and you shall meet at times reasonably convenient to both to discuss the dispute, if the dispute shall not have been resolved, then such dispute shall be finally settled by binding arbitration conducted by a mutually agreeable panel of three (3) arbitrators expeditiously in accordance with the International Arbitration Association Commercial Arbitration Rules. Such arbitration may be used only to interpret the provisions hereof and not to modify any provision of this Agreement or any agreements ancillary hereto. Arbitration shall be held in Austin, Texas, or such other place as the parties shall agree. All arbitration fees and other costs and expenses shall be paid equally by Licensor and you; provided, that the parties shall be entitled to reimbursement of such fees and costs (including, without limitation, attorneys' fees and costs) in such other proportion as the arbitrators may determine.
7.8 Injunctive Relief. Pending the outcome of the arbitration proceedings described in Section 7.7, a party may seek injunctive relief to prevent the breach or threatened breach of the provisions in Section 5, but only in a court of competent jurisdiction in Travis County, Texas, to which laying of venue for such limited purpose the parties hereby consent and waive any objection in relation thereto.
7.9 Force Majeure. The performance of either party of their obligations contained in this Agreement shall be extended by a reasonable period of time if such performance is impeded by an act of God, riot, war, embargo or requisition by act of government; provided that such party shall provide the other with written notice of such event and all relevant information thereto.
7.10 Captions. Section and other headings have been inserted for convenience of reference only and are not a part of nor intended to govern, limit or aid in the construction of any term or provision hereof.
7.11 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties' respective rights and obligations hereunder.
7.12 No Waiver. No delay or failure by either party in exercising any right under this Agreement, and no partial or single exercise of that right, will constitute a waiver of that right or any other right. Failure by either party to enforce any right hereunder will not be deemed a waiver of future enforcement of that or any other right.
7.13 Survival. The provisions in Sections 3, 5, and 7 shall survive the expiration or termination of this Agreement for any reason.
8.14 Trademarks and Trade Names. You acknowledges and agrees that Licensor is the sole and exclusive owner of all right, title and interest in and to the trademarks, service marks, trade names, domain names used on and in the Software.
8.15 Further Assurances. You will execute and deliver, from time to time at the request of Licensor, such instruments, and take such other actions, as Licensor may reasonably deem necessary to protect and perfect Licensor's ownership of the Software, and any derivative works created therefrom.
8.16 Entire Agreement. This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersede any prior oral or written agreements. This Agreement may not be changed, modified, amended or supplemented, except by a writing signed by both parties. Each of the parties acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as may be expressly set forth herein.